Francis I. Spagnoletti, 2020 T. C. Memo. 140, filed 10/8/20, was disputing the additions and interest for his two late-filed returns, but hadn’t paid the full balances shown thereon, nor had he paid estimateds on two subsequent years.

The SO at the CDP agreed that since the NITL issued without a SNOD (self-reporteds and arithmetic), Francis could contest. But Francis sent in no Form 433-A. He offered to pay the whole $1.9 million in 120 days, but the SO couldn’t give him an IA. She did hold off the NOD affirming the NITL until five weeks after the 120 days Francis wanted.

Francis paid nothing, and petitioned.

Judge Albert G (“Scholar Al”) Lauber has this one, but Francis hasn’t helped his case.

“Petitioner admits that he ‘did not raise an issue as to the reported tax due * * * for 2015 and 2016.’ But he asserts that he did dispute his liability for additions to tax and interest. He qualifies this assertion, however, by saying that he advanced such a challenge ‘to the best of his recollection.’” 2020 T. C. Memo, 140, at p. 7. 

Well, the SO’s notes don’t show that.

“The SO’s case activity record contains no reference to any challenge by petitioner to his liabilities for interest or additions to tax. Her summary of the… telephone call describes petitioner’s position as being that ‘he just need[s] the 120 days and he will full pay what he owes.’ The notice of determination states that the underlying liabilities were ‘not raised as an issue for the period(s) being considered in this hearing.’ And in his petition to this Court petitioner advanced no challenge to any portion of his underlying liability….

“In the light of this record evidence, petitioner’s assertion that he raised his liabilities for additions to tax and interest ‘to the best of his recollection’ is not sufficient to create a genuine issue of material fact. Petitioner appears to contend that he made this point inferentially by complaining that the IRS caused delay by not returning his initial phone calls inquiring about a payment plan. That complaint was not sufficient to raise a cognizable challenge to his underlying tax liabilities.” 2020 T. C. Memo. 140, at pp. 7-8.

I again quote an ancient saying: “Worst piece of paper better than best human memory.”

Judge Scholar Al notes that Francis is an attorney, 2020 T. C. Memo. 140, at p. 2. It was drilled into my head in my greenest moments at the Bar that the record is your friend: protect, preserve, and defend the record. And fill it with every material element you need. In writing.

Edited to add, 11/16/20: Francis tries a Rule 162 vacation, but it doesn’t go, even though Judge Scholar Al designates the order.